(the bankrupt) gave the defendant two bonds, and a warrant of attorney to confels judgment. That the defendant entered judgment for the fame debt and 50s. cofts, and upon the 9th day of March 1769, fued out a writ of execution (a fieri facias) upon the judgment, which was delivered to the fheriff, of Surry to be executed in due form of law; that the fheriff, by virtue of that writ, levied of the goods of Anderfon to the value of 2155/. 65. 5d. for the faid debt and cofts, and for the fheriff's fees and poundage. That on the 9th day of April 1769, a commiffion of bankrupt was awarded against Anderfon on the petition of Ann Brodie a bona fide creditor for 100l. and upwards, and he was thereupon declared a bankrupt. That in Michaelmas term 1769, the plaintiffs, as affignees as aforefaid, brought an action of trover in this court against the late fheriff of Surry and the now defendant Campbell, for the goods fo levied under the faid writ of execution, and at the trial thercof before the then Lord Chief Juftice Wilmot in Hilary term 1770, a verdict was given for the defendants, and judgment thercupon was accordingly entered upon the record. That in Eafter term following the plaintiffs, as affignees as aforefaid, brought their action in the court of King's Bench, against the defendant Campbell, and declared therein for money had and received by him to the ufe of the plaintiffs as affignees as aforefaid, and recovered 860l. 10s. (as is mentioned. in the plea) but upon a different caufe of action than that for which the prefent action was brought, namely, for money had and received by the defendant Campbell, for certain notes of hand delivered by the bankrupt Anderson to the defendant after the act of bankruptcy. At the trial of the prefent action it was proved, that Anderfon committed an act of bankruptcy before the 9th day of March 1769, (to wit) in February 1769. And it was admitted that the defendant Campbell received the money levied, under the execution for his debt and cofts, before the plaintiffs brought the faid action in the court of King's Bench; and this action being brought to recover the money fo levied and received by the defendant Campbell, the queftion for the confideration of the court is, Whether, under the facts and circumftances flated in the above cafe, the plaintiffs are intitled to recover? This cafe was argued in Eafter term laft, upon the general iffue (the fecond plea being laid out of the cafe, having been adjudged ill on a former argument). Vol. III. X ift, It 2 Stra. 860. Phydall there cited. ift, It was argued for the defendant, that an action for money had and received by him to the ufe of the plaintiffs, would not lie in this cafe; and 2dly, That if this action will lie, trover alfo will lie; and plaintiffs having brought trover in Michaelmas term 1769, against the fheriff of Surry and the now defendant, to recover the value of the goods of the bankrupt taken in execution; have made their election; and there being a verdict and judgment upon record againft the plaintiffs in that action of trover they are barred for ever from having any other action which requires the very fame evidence to fupport it which was required to fupport the former action. That an indebitatus affumpfit will not lie, unless upon an express or implied contract; here is neither; if the execution upon the ' goods of Anderfon the bankrupt was right, all is well; if it was wrong, it was a tort for which an affumpfit cannot lie. That where a bankrupt fells goods after he is a bankrupt, the Huffey verf. affignees may have trover or affumpfit; the defendant in the prefent cafe received the money levied under an execution at his fuit by the fheriff of Surry; this is very different from the case where fuch an action as this is brought to try the right to an office, the ufurper of the office is confidered as the fervant of the officer de jure, who may overlook and dispense with the wrong and fay, "You received the money for my ufe." Howard verfus Wood. Sir Tho. Jones 126. 2 Lev. 245. S. C.-This is prima impreffionis, no action of this kind having been ever brought in the like cafe, and the argument of Littleton as to the statute of Merton may be used, that if this action would have laid in fuch a cafe as this, it would have been brought long ago. The act of bankruptcy, and all the facts that could arise in the prefent cafe were tried before in the action of trover against the Theriff and the now defendant, wherein there was a verdict against the plaintiffs, and judgment is entered thereupon; there would be no end of fuits if others could be brought where the fame evidence is only required to fupport them, which was neceffary to fupport the former fuit. See the preface to the 8 Rep. where Sir Edw. Coke fays, that in all perfonal actions concerning debts, goods and chattels, a recovery or bar in one action is a bar in another, and there is an end of the controvery. The plaintiffs recovered 860l. 10s. in the King's Bench, upon the very fame promife as is fet forth in the prefent declaration; there is no reason why they fhould not in that action have re covered covered the money mentioned in this declaration, if it had been due to them. When the plaintiffs brought trover against the fheriff and the Co. Lit. 144. defendant, they determined their election. 1 Roll. Abr. 726. and 145. a. are thereby barred of this action. For the plaintiffs it was argued, that as Anderfon had committed an act of bankruptcy in February 1769, before the fieri facias was executed (the 9th of March 1769), and the fheriff had paid the money to the defendant Campbell, this action for money had and received for the use of the affignees the plaintiffs would well lie; and that the action of trover in Michaelmas term 1769, (against the now defendant and the then fheriff of Surry, for the very fame goods which were fold under the faid execution, and the money paid to the now defendant) wherein there was a verdict against the now plaintiffs was not a good bar to the prefent action. The court took time to confider until this term, when judgment was given for the defendant, per totam curiam. Curia.-The queftion for the confideration of the court is, whether under the facts and circumstances stated in this cafe the plaintiffs are intitled to recover. I Lev. 173. From the moment a perfon becomes bankrupt, the property 1 Sid. 171. of all his goods, debts, credits, &c. are vefted in the aflignees Comb. 123. duly chofen under the commiffion, but they cannot declare in 1 Show. 112. trover or affumpfit as of their own goods or debts, but muft declear as affignees of the bankrupt, and a defendant may wage his law, or plead the ftatute of limitations, as the cafe may happen 1 Bur.o. 32 to be or require. Anderfon being a bankrupt in February 1769, and the fheriff having afterwards, in March 1769, taken his goods in execution at the fuit of the defendant Campbell, and paid him the money for which they were fold, it is queftioned in the prefent cafe, whether an action will lie against him for money had and received for the ufe of the affignees. Li. Raym. Lord Hardwicke was, for fome time, of opinion that this action See 3 Lev. had never been allowed to lie, and that the affignees were tied 191. down to proceed in trover for the tort; but he afterwards altered 1216. holt. his opinion, and held this action well laid. And we are 95. Vezey all of opinion that this action well lies; whether the money, 326. X 2 juftice See Litt. fect. 588,219. And. 145. juftice, to have received the fame for the ufe of the affignees, in whom the property of thofe goods by law was vefted, and to have promifed to pay the fame to the affignees; there is a fuppofed privity of contract between the perfons whofe money it lawfully is, and the person who has got or received it. We are of opinion that the plaintiffs having brought trover in this court in Michaelmas term 1769, against the fheriff of Surry and the now defendant, to recover the value of the goods of the bankrupt taken in execution, (which action well laid) have made their election, and there being a verdict and judgment upon record in that action against the plaintiffs, they are barred for 12 Mod. 324. ever from having the prefent or any other action: for 6 Rep. 7. Co. Lit. 145. a. Cro. Eliz. 667. Skin. 57. T. Raym. 472. 3 Mod. 1. 2. Pollex. 634. 2 Show. 213. 2 Vent. 156. Comb. 123. Bro, action fur le cafe pl. 97, 105. 4 Rep. 92 Slade's cafe you fhall not bring the fame caufe of action twice to a final determination; nemo debet bis vexari, upon this we found our judgment; and what is meant by the fame caufe of action is, where the fame evidence will fupport both the actions, although the actions may happen to be grounded on different writs; this is the teft to know whether a final determination in a former action is a bar, or not, to a subsequent action; and it runs through all the cafes in the books, both in real and perfonal actions: it was refolved in Ferrer's cafe, 6 Rep. 7. "that when one is barred in any "action real or perfonal, by judgment upon demurrer, confeffion, verdict, &c. he is barred as to that or the like action, of the like nature for the fame thing for ever;" for expedit reipublica Moore 463. ut fit finis litium. But there is a diverfity between real and perfonal actions [which may be well underflood by reading that cafe] Lord Coke means by actions of the like nature, actions of the fame degree, where you cannot have a writ of a higher nature, A bar in a writ of aiel is a bar in a writ of befael, and in a collateral action as cofinage, &c. for thefe are ancestral, and of one and the fame nature; but will not bar a writ of right-Per. fonal actions are all of the fame heighth or degree. In an action of trefpafs for taking his horfe, which by the count is reduced to a certainty [for you must wait for the declaration] it is a good plea to the writ that a replevin is pending of the fame taking, where an averment is allowed that all is for one and the same taking. 5 Rep. 61. b. 46 Nemo debet bis vexari, is the general rule; to which there are fome exceptions; as where a man mistakes his action by fuing as adminiftrator, when, in truth he is executor-" Robinson and others executors of J. R. brought an action of debt upon an "obligation, the defendant pleaded that before the purchase of "the writ one of the plaintiffs as adminiftrator of J. R. brought "an action of debt upon the fame bond against the defendant, "who then pleaded that J. R. made executors who admini 66 “ stred, 86 ་་ 86 36 Rep. edit. "fred, and traverfed that he died inteftate; then the plaintiff 86 Alfo there is no question but that if a man mistakes his decla ration, and the defendant demurs and has judgment, the plain. tiff may fet it right in a fecond action. 1 Mod. 207. Lepping and Kedgewin. It appears in the prefent cafe that trover has been brought for the converfion of the goods taken in execution, and that the jury have determined that the plaintiffs have no right to those goods; and if they have no right to them, they have no right to the produce thereof, or to the money for which they were fold; it is clear therefore, that the plaintiffs have no right to this action; in the former action the judgment is on record that the plaintiffs nil capiant per breve, fed eant inde fine die, they fhall never come again, but are for ever barred. Judgment for the defendant per totam curiam. Copley & muth. 540. Sanderfon verfus Baker and Martin fheriffs of London 2 Black. Rep. and Middlefex. C. B. 832. S. C. armis lies TRESPASS for breaking and entering the plaintiff's ware- Trefpafs vi et against the fheriffs, for inftead of the goods of B. by his bailiff, upon the fheriff's warrant upon a fieri facias. |